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F E Smith, Advocate

Category: Family Law

Satisfied Customers: 10817

Experience: I have been practising for 30 years.

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My brother passed away 18 months ago and left his estate to

Customer Question

My brother passed away 18 months ago and left his estate to his second wife who has now passed away but in his will he said that if she died before him he wanted his estate split between his 3 sons from his 2 marriages but the son from the 2nd marriage is now saying that everything has been left to him as per his mom's will so the older sons get nothino. Is there anything we can do.

The executors for my brothers will are his eldest son from his first. marriage and his son from his second marriage. Yes 2nd wife died about 3 months ago. The house is still in my brotheroom and first sister in laws name on a mortgage.

Customer:replied 2 months ago.

Executors for my brothers will are his eldest son from his firsthe marriage and the son from his second marriage. The youngest son is from the second marriage and his mother passed away about three months ago

In most wills, there is a 28 day survivorship clause whereby, if your brother passed away and left everything to his wife , she only gets it if she survives him by 28 days. That doesn’t apply here of course.

It is very common for a spouse to leave everything to a second spouse who then leaves everything to the second spouse’s children and leaves everything in their will to their own children and not the deceased spouse’s children by an earlier marriage or relationship. That’s the situation here.

In his will, he cannot specify normally what happens in her will.

There is no such thing as a joint will but there are mirror Wills and mutual wills.

A mirror will is where each spouses will reflect the other and the same provisions are in each.

However there is nothing to stop the survivor of the two changing there will when the first person has died which is what’s happened here.

There are also mutual wills (very unusual and I have never done one in over 25 years in the legal profession) where the provisions in one will mirror the provisions in the other will and there is an agreement in the Wills that in consideration of them being the same, each person agrees not to change it.

It’s unlikely these latter mutual wills is what’s happened here.

By leaving everything to his second wife who has her own children and leaving his children out of it and just merely expressing a “wish” and trusting his second wife, I’m afraid that to a great extent he has done his own children a great disservice.

However all is not lost and it is possible (difficult but possible) for your brother’s children, his second wife’s stepchildren, to bring a claim under the Inheritance Provision for Family & Dependents Act 1975.

There is an article here on exactly this subject and I can probably do no better than let you read it and come back to me with any queries arising:

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If you still need any point clarifying, I will still reply because the thread does not close.

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